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Checking in on Section 702

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  1. National Security
There is strong bipartisan support in Congress for reforming the surveillance program.
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There was a brief fire drill last week over reports that Senate leadership had plans to include a “clean” reauthorization of a hot-button foreign intelligence law in the stopgap funding bill to avert a government shutdown. The law, known as Section 702 (that is, Section 702 of the Foreign Intelligence Surveillance Act), permits the National Security Agency to collect large quantities of electronic metadata and content related to non-U.S. persons reasonably believed to be overseas, which sweeps in information from Americans in contact with those targets. That information, controversially, can be searched without a warrant in criminal investigations.

Fortunately, the continuing resolution that went to the president’s desk last week omitted the 702 language. The law, however, will expire at the end of the year if not renewed, so it’s likely to continue to generate some heat on Capitol Hill.

The political battlelines around 702 are unusual. On one side, you have the White House and Justice Department opposed to any warrant requirement for U.S.-person searches, with FBI Director Christopher Wray calling the burden the FBI claims it would impose a “de facto ban” on such queries. On the flip side, there is strong bipartisan support in Congress for reforms, the most tangible of which right now is the Government Surveillance Reform Act, a comprehensive bill introduced earlier this month by Sens. Ron Wyden (D-Ore.) and Mike Lee (R-Utah), and Reps. Zoe Lofgren (D-Calif.) and Warren Davidson (R-Ohio).

The bill, which weighs in at a modest 206 pages, would reauthorize the 702 program for four years but with significant new guardrails. Most notably, the bill would prohibit warrantless searches in criminal investigations for U.S.-person information unless authorities already have a criminal or foreign intelligence warrant, an emergency exists involving an imminent threat of death or serious bodily harm, the person consents (for instance, the person may be a crime victim but the law, as written, would otherwise prohibit a protective query), or the search is for malicious code in a cyberattack investigation. It would limit the subsequent use of the information collected under these exceptions in unrelated cases.

The bill also has a few other interesting features. The Foreign Intelligence Surveillance Act, including Section 702, is meant to govern foreign intelligence surveillance that takes place in the United States. Section 702 permits warrantless targeting of non-U.S. persons thought to be overseas, but whose data is present in the U.S. For surveillance that occurs entirely overseas, the relevant authority is Executive Order 12333. Because modern telecommunications shunts our data all over the globe, Americans’ data can still be swept up. Under the bill, a warrant would be required to search 12333 data for U.S.-person information in the same manner and with the same exceptions as Section 702.

Further, the bill would prohibit the circumvention of Fourth Amendment protections through the government purchase of information collected by private parties, and would provide additional avenues for judicial review of foreign intelligence surveillance activities.

All of these reforms would provide important protections for the press, particularly with regard to source confidentiality. For instance, while the Justice Department has implemented strong protections for journalists in criminal and civil matters, its news media guidelines do not apply to Section 702 queries (or to FISA collection, generally). Practically, that means that any communication between a U.S. journalist and a non-U.S. overseas source is subject to possible 702 collection and warrantless querying.

Again, the White House is reportedly opposed to the Wyden bill, with a senior official telling journalists that the bill is “both the wrong fit for what we’re doing and operationally unworkable,” though the official said the White House had yet to review the full text. The cross-aisle support for reform in Congress is, however, formidable. It will be fascinating to see how the debate over Section 702 reauthorization plays out in the coming weeks.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.

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